Richard Feynman was a physicist by trade who thought about light and atoms and how such things behaved. By observing and thinking about them he tried to imagine what the rules of the game were that he was trying to figure out.
In my first Constitutional Law class of the year, I invite students to wonder what a constitution is. That's easy. It's what's in this little booklet. Okay, that was too simple. Our Constitution is in writing. You can pick it up and look at it.
But my question wasn't really quite that silly.
Do you need a written constitution to have a country? I ask.
No, someone says. Britain has no written constitution.
Do they have any sort of constitution, perhaps an unwritten one? How do they know, then, when they do something that's unconstitutional? Such as voting for a new monarch every four years. That's absurd. Everyone knows that Britain doesn't elect its kings and queens. They reign for life. To suggest voting for the next monarch would be to suggest something contrary to the British Constitution, unwritten though it may be.
Well how do we know the monarch reigns for life, that it is an inheritable position? We know it from history, context, and statute law that prescribes who may, and may not, become the king or queen of England.
We know it from the fact that over the centuries in which Britain has had a monarch the idea of a monarchy seemed important to the bulk of the population in England, from the owners on top to the lower classes who did the work. Even after the English Civil War, the bloody one in 1642 and the Glorious Revolution of 1688 (no blood), when the monarch was stripped of considerable power in a struggle with Parliament, the monarchy was retained. Even today, while there are anti-monarchists who object to the money, power, and influence of the monarchy, they seem to be a minority, as the rest of Britain, and much of the world, including many in the U.S., pay attention to every little detail of royal life and would feel a loss if deprived of this very odd institution by democratic standards. In their bones, monarchists know it is right. The constitution is written on their hearts. Like a chess player, British monarchists don't need no stinkin' rulebook.
What the British people have done is to establish a democracy headed by a prime minister while keeping a figurehead monarch. You know what a figure-head is, don't you? It's the statuette carved on the prow of a ship to make it look good. But the ship's captain gives the orders where the ship is to sail, and when, and how, and for what purpose, not the figurehead.
Pursuant to the unwritten British Constitution, Catholics may not become the British monarch. They went through all that many times over during Henry VIII's reign. The state religion switched back and forth between Protestant and Catholic seven times in ten years, if I have the numbers right. Finally the British enacted a statute saying Protestant it is and must remain. To stop the religious wars and to reflect what was on the hearts of most, but not all, of the English.
From the time of Elizabeth I, that's the way it's been. So ingrained is this idea that it would be correct to call it "of constitutional dimension," meaning that to violate the notion of Protestant monarchy would be viewed by most if not all Brits as unconstitutional.
In the U.S., by contrast, we have what is called a republican sentiment, small "R."' Republican in this sense means "anti-monarchy." Our colonists who rebelled against George III in 1776 had developed the idea that self-rule, by democratic election, was right for all mankind. Down with the king and all kingly trappings. This is why one of the worst political insults that opponents of John Adams or Alexander Hamilton could hurl was that they favored a return to monarchy.
The issue would come up repeatedly, such as on the question of how the new chief executive of the nation, the president, should be treated. Should he be addressed as though he were the monarch since he was the head of state? Your royal presidency? What about a crown for the president. Those were laughed off-stage as being inconsistent with this new idea in men's hearts, the idea that human beings were equal and should never bow down before someone raised up as a king. This idea in men's hearts was there before it was written into any constitution. Constitutional law is what is written in men's hearts. The paper version is simply the evidence of it. We study the paper version, but would be wiser to understand the "written-on-mens'-hearts" version, since this is the one that counts when push comes to shove.
To this day we are not only a democracy, electing our political leaders and public servants, but republican, opposed to any moves to raise people up to lord it over us like monarchs. Actually we do have a longing for public saints, but then we tear them right back down again, showing that our idols have feet of clay. Just another example of the conflict in men's souls. We loved the idea of equality, but not for certain people. That allowed slavery. And then Jim Crow.
By watching the behavior of the players, you deduce the rules of the game. Constitutional law represents the rules of our national game, just as chess and checkers are usually played by knowledgeable players who are able to follow the rules without the need to resort to a rule book. If you play chess, or watch it played, you soon figure out that each piece may only make certain legitimate moves towards a certain goal, capturing the opponent's king. That's constitutional, or basic to chess.
Constitutional law is about legitimacy. Often we think of court's dispensing justice. Decide the case based on what is just. That's true, provided you are in the right court. You don't go to traffic court to get a divorce. That would not be legitimate. Its jurisdiction (power) has been limited to dealing with moving violations. Traffic court has not the power to grant divorces. For a traffic court to grant divorces would be illegitimate. A divorce decree issuing from traffic court would be seen as null and void, unconstitutional as a matter of power, even though on the merits this couple really needs a divorce.
Richard Feynman describes what physics is: watching the world around him to try to figure out the rules of the game.
Here's him explaining it.
We can imagine that this complicated array of moving things which constitutes "the world" is something like a great chess game being played by the gods, and we are observers of the game. We do not know what the rules of the game are; all we are allowed to do is to watch the playing. Of course, if we watch long enough, we may eventually catch on to a few of the rules. The rules of the game are what we mean by fundamental physics...
Here is the Feynman site from which the above is drawn, under Life and Science, Quotes.
Some of what Feynman says of science is helpful to understanding Con-Law. For example, he refused to use labels for ideas. We use labels all the time. He wanted the idea, not the label.
If someone described a situation in science as involving the Fitz-Cronin hypothesis, he'd say he didn't know what that was, even though he'd probably run across it and knew very well what some people thought it meant. He wanted the person using the idea to describe the idea, rather than just throw around labels.
Labels were too capable of misleading either the user or the listener, or both. You think you're both using the same idea because the labels are the same, but the ideas you each have in mind are different and you miss a critical point.
In Con-Law I ask students what they mean when they say "it" while briefing a case. "It" is usually the main point that they haven't worked hard enough to put into words yet. My job is to see that they make this effort. Otherwise Con-Law is just a big "it." It (Con-Law) is supposed to be a collection of ideas representing the rules of our game, the game of organizing ourselves into a country that works and treats people right. How's that for an abstraction of what Con-Law is really all about. Have I left anything out?
Con-Law is a word that stands for the rules that allow a country to work and treat people properly at the same time.
I like it. I'm sticking with it until I have to correct it. My new constitution shall proclaim:
The nation must function properly and treat people right.
We can go into specifics later.
You could deduce the constitution of a bus queue by observing how people behave waiting for a bus.
You could deduce the constitution of your family by deducing how one becomes a legitimate member.
Or this class. Same question regarding membership, another question as to how it is conducted. In some classes, the student recites from his seat at a desk facing the teacher. In my class the student steps forward and teaches the case facing the class. There's a big difference in format. We hope it pays off in better communication of ideas. Different classes, different teachers, different ways the class is constituted, aside from who is legitimately entitled to attend.
But the class functioning rules (as opposed to school student admissions rules) are not in writing. How could an American Con-Law class forget to have a written constitution? Beats me. It seems the most natural thing in the world, not to have a written constitution by which to run the class. We can keep some ideas in our heads without writing them down, I guess.
Our Constitution, signed 1787, is the world's first written Constitution, assuming some hieroglyphic wall or cuneiform tablet doesn't pop up someplace and make me a liar. Apparently it is quite natural to form governing groups without putting anything in writing. Let's see:
Wolf packs.
Schools of fish.
Herds of buffalo.
And not one document.
Maybe it's written in their genes.
Us, we've got to use paper, pen, and ink.